Ditching the Disclaimer

Lately, we have been talking about email etiquette in my office. A lot.

Like, how long is too long to reply? What if your email server occasionally marks something as “read” which in fact has not been read? How do you respond to that? Should you include your email signature every single time or only the first time you respond? What belongs and does not belong in an email signature? What about typos? When does an email become too long and you’d be better off just writing a proper letter? What about graphics in email signatures? Or funny quotations?

And what about that long list of disclaimers many of us lawyers append to every single email signature? You know, it looks something like this:

Confidentiality: This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering the message to the intended recipient, YOU ARE HEREBY NOTIFIED that any dissemination, distribution or copying of this communication is strictly prohibited. If you are not the intended recipient of this message, please notify the sender and destroy any printed version and delete this email.

IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer’s particular circumstances from an independent tax advisor.

Spam Filter: All e-mail communication to our firm is electronically filtered for “spam” and/or “viruses.” That filtering process may result in e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your e-mail communications or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

Sometimes there’s more. “Please excuse any typos as this was sent from my iPhone.” Or, “Kindly ‘Reply All’ to ensure a prompt response.” And disclaimers about privacy, security, not creating an attorney/client relationship, etcetera and so forth. And always in a six-point font that nobody ever reads. I know nobody ever reads them because I have put the above disclaimers in my email for years. It’s a habit I learned at BigLaw and that carried over into my solo and small firm practice. Nobody but me has EVER read those disclaimers. I’ll bet you didn’t even read them – you just skimmed over them to get back to the substantive blog post. Hell, I wouldn’t have read them if I hadn’t written them!

Why do we do this? Ever print out a bunch of emails for any reason and had 60 pages of disclaimers for 6 pages of actual communication? Ugh!

If I were the client of a lawyer, I would find this disclaimer habit of lawyers to be deeply annoying. They already think they pay us by the word. How better to prove them right than to charge a .2 for an email message and include 50 lines of disclaimers at the bottom.

And we put these disclaimers on EVERYTHING we send via email. Email to a client? Disclaimers. Email to your paralegal? Disclaimers. Email to opposing counsel? Disclaimers. Scheduling a lunch date with a friend via email? Disclaimers. Asking the J.A. a question about the new electronic case filing system? Disclaimers. Email to your mom about coming home for Christmas? Disclaimers.

It occurred to me recently – and honestly, I do not know why it never occurred to me sooner – that I should take a tip from the software developers and web developers I represent. I tell them all day long that click-through disclaimers, terms of use, privacy policies, and licenses are completely enforcible.

Why are we killing extra trees just to put the damned disclaimers on every email when we can simply include a link back to our websites with all of those disclaimers? All the disclaimers you may want, in fact. So meet my new email signature!

About the Author

After a twelve-year career in IT services, Suzanne fulfilled a lifelong dream to return to law school. Suzanne has been an attorney for more than ten years, beginning her career at a large firm in Downtown Orlando, Florida. She has had her own firm since 2010, and formed Meehle & Jay with partner Davey Jay in 2016.
Suzanne’s passion is helping small businesses, start-ups, and entrepreneurs. She believes in helping others achieve what she has achieved: a small business that competes in a marketplace full of options.
Suzanne was honored with the highest rating, AV Preeminent, from Martindale-Hubbell in 2007. She was named a Florida Super Lawyers Rising Star in 2016.
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